Walpole v. Smith

4 Blackf. 151, 1836 Ind. LEXIS 4

• Court: Indiana Supreme Court
• Decided: June 10, 1836
• Status: Published

Opinion

HELD, in this case, that the death of the plaintiff in error after the errors are assigned, does not abate the writ of error. 2 Tidd’s Prac. 1128

(1).

The writ abates if the plaintiff in error die before the errors are assigned, 2 Tidd’s Prac. 1128.' But his legal representatives may revive the same by scire facias. Rev. Stat. 1838, p. 454. If there be two plaintiffs in error, and one of them die before the assignment of errors, the death of such plaintiff may sussested on reoorlb and the cause can proceed at the suit of the survivor. Stat. 8 and 9 Will. 3.—Clarke v. Rippon, 1 Barn, & Ald. 586.—Camp v. Bennett, 16 Wend. 48.—Rev. Stat. 1838, p. 455.

A writ of error does in no case abate by the death of the defendant, or one of the defendants, in error, whether it happen before or after errors assigned. 2 Tidd’s Prac. Sup. If one of several defendants die, his death is suggested on the roll, and the writ of error proceeds against the survivors. 2 Will. Saund. 101 p.

In the Supreme Court of the United States, there is the following rule of practice on this subject;

Whenever pending a writ of error or appealTeither party die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may voluntarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined as in other cases: and if such representatives shall not voluntarily become parties, then the other party may suggest the death on the record; and thereupon, on motion, obtain an order, that unless such representatives shall become parties within the first 10 days of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed; and if the party so moving shall be plaintiff in error, he shall be entitled^to open the record, and, on hearing, have the same reversed if it be erroneous. Provided, however, that a copy of every such order shall be printed in some newspaper at the seat of government, in which the laws of the United Slates shall be printed by authority, three successive weeks, at least 60 days before the beginning of the term of the Supreme Court then next ensuing. 6 Wheat, v. Green v. Watkins, Id. 260.

If a feme sole be plaintiff in error, her marriage abates the writ of error at common law. 2 Will. Saund. 101 q. But, in such case, the name bf the hus-. band maybe suggested on the record, and the cause can then proceed in favour of the husband and wife. Rev. Stat. 1838, p. 455.